*

unlawfully exhibiting any false light or signal, with intent to bring a ship into danger, or unlawfully and maliciously doing anything tending to the immediate loss or destruction thereof, for which no punishment has been before specified (f), the unlawfully and maliciously removing or [*320] injuring any buoy or other sea mark (g), or destroying any part of a ship in distress, wrecked, or cast on shore, or goods thereto belonging (h). Malicious injuries to property, which have by statute been constituted misdemeanors, comprise such as are done by tenants to houses or fixtures in their possession (i)—the breaking down the dam of a fishpond, or of any water being private property, or in which there is any private right of fishery, with intent thereby to take or destroy fish in such pond or water, or unlawfully and maliciously putting any noxious material therein, with intent to destroy the fish, or destroying the dam or floodgate of any reservoir, or pool (k)—the throwing down, or destroying any turnpike gate or toll bar, or any building, or weighing engine, erected for the better collection, ascertainment, or security of the toll (7)—the obstructing by any unlawful act, or by any wilful omission or neglect, any engine or carriage using any railway, or aiding or assisting therein (m)-the unlawfully and maliciously injuring *any electric [*321] telegraph, or the machinery used in working it (n), or damaging any work of art in a museum, gallery, or repository to which the public are admitted, or any picture, monument, or ornament in a church, or other place of divine worship, or in any building belonging to the Queen, or to any county, city, parish, or place, or to any university, or inn of court, or in any street, square, burial ground, or public garden, or any statue or monument exposed to public view, or any railing, or fence surrounding it (o)—the unlawfully and maliciously doing any damage to real or personal property, either of a public or private nature, for which no punishment has been before specified, such damage being to an amount exceeding 5l. (p)-and the making, or knowingly having in one's possession, any gunpowder or other explosive substance, or

(f) Sect. 47. Punishment: penal servitude for life or for not less than five years, -or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping.

(g) Sect. 48. Punishment: penal servitude for not more than seven nor less than five years, or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping.

(h) Sect. 49. Punishment: penal servitude for not more than fourteen nor less than five years, or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement.

(i) 24 & 25 Vict. c. 97. Sect. 13. Punishment: fine or imprisonment, or both. By s. 59, every provision of the above act applies to any person who, with intent to injure or defraud another, does any of the acts thereby made penal, although the offender be in possession of the property against or in respect of which such act be done.

(k) Sect. 32. Punishment: penal servitude for not more than seven nor less than five years, or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping.

(1) Sect. 34. (m) Sect. 36.

(n) Sect. 37. Punishment: imprisonment for not more than two years, with or without hard labour. The above offence is summarily punishable at the discretion of the justice before whom the charge is heard.

(o) Sect. 39. Punishment: imprisonment for not more than six months, with or without hard labour; and, if a male under the age of sixteen years, with or without whipping.

(p) Sect. 51. Punishment: imprisonment for not more than two years, with or without hard labour, —and in case such offence be committed between the hours of nine in the evening and six in the morning, penal servi tude for five years, or imprisonment for not more than two years, with or without hard labour.

noxious thing, or any machine, with intent by means thereof to commit any felony mentioned in the act concerning malicious injuries (q). (720)

XIV. Conspiracy-an offence of which we before briefly spoke--may be directed towards the commission of one or other of the criminal acts mentioned in the preceding pages. A conspiracy to rob (r), to XIV. Conspiracy to rob, defraud, obtain money by false pretences (s), to cheat and [* 322 ] defraud (t), is indictable, the conspiring together for the purpose of effecting an illegal object being here the substantive offence. (721)

&c.

Such are the principal infringements of the rights of property: the last species of offences against individuals or private subjects, which the method of our distribution has led us to consider. We have before examined the nature of offences against the public, or commonwealth; against the sovereign or supreme magistrate, the head and protector of that community; against the universal law of civilized nations, together with some of the more atrocious offences, of publicly pernicious consequence, against God and religion. And these several heads seem to comprehend the whole circle of crimes, cognizable by the laws of England.

(q) Sect. 54. Punishment: imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement; and, if a male under the age of sixteen years, with or without whipping.

(r) R. v. M'Daniel, 1 Leach, 45.

(8) R. v. Gill, 2 B. & Ald. 204; Rey. v. Gompertz, 9 Q. B. 824; Reg. v. Hudson, Bell, C.C. 263; Reg. v. Kenrick, 5 Q. B. 49. (t) Id.

(720) The offense of malicious mischief has been denied a common-law existence in this country (see State v. Wheeler, 3 Vt. 344; Black v. State, 2 Md. 376; Illies v. Knight, 3 Texas, 312); which is, however, in conflict with the weight of authority.

Thus, an indictment is held to lie for maliciously, wickedly, and willfully killing a horse belonging to another (Res. v. Teischer, 1 Dall. [Penn.] 338; State v. Council, 1 Tenn. 305); or a dog (State v. Latham, 13 Ired. [N. C.] 33); or a cow (People v. Smith, 5 Cow. 258; Com. v. Leach, 1 Mass. 59); or a steer (State v. Scott, 2 Dev. & Bat. [N. C.] 35) ; or any beast whatever which may be the property of another. Henderson's Case, 8 Gratt. (Va.) 709; Loomis V. Edgerton, 19 Wend. 420.

So wanton cruelty to animals in general is held indictable. State v. Briggs, 1 Aiken (Vt.), 226; U. S. v. Logan, 2 Cranch's C. C. 259. And it has been maintained that all kinds of property, real and personal, may be the subject of this offense at common law (Loomis v. Edgerton, 19 Wend. 419. But see State v. Robinson, 3 Dev. & Bat. [N. C.] 130; State v. Helmes, 5 Ired. [N. C.] 364; Brown's Case, 3 Greenl. [Me.] 177); which restrict the offense to personal property. Under various statutes, however, in the United States, almost every species of property, real and personal, has been made the subject of it. See Taylor v. State, 6 Humph. (Tenn.) 285; Com. v. Erskine, 8 Gratt. (Va.) 624; State v. Abbott, 20 Vt. 537; State v. Crenshaw, 22 Mo. 457; Boyd v. The State, 2 Humph. (Tenn.) 39.

In a case of malicious mischief the act must proceed from malice (State v. Doig, 2 Rich. [S. C.] 179; State v. Council, 1 Tenn. 305; Com. v. Walden, 3 Cush. [Mass.] 558); which malice, it is said, must be against the owner of the property injured. Wright v. State, 30 Ga. 325; State v. Latham, 13 Ired. (N. C.) 33; Hobson v. State, 44 Ala. 380; State v. Enslow, 10 Iowa, 115; United States v. Gideon, 1 Minn. 292. But see State v. Avery, 44 N. H. 392; Mosely v. State, 28 Ga. 190; State v. Hurd, 51 N. H. 176.

At common law, the offense of malicious mischief is misdemeanor, and not felony. Black v. State, 2 Md. 376. But by statute it is sometimes felony, and in some cases misdemeanor. See Com. v. Macomber, 3 Mass. 254; Black v. State, 2 Md. 376; Trimble v. Com., 2 Va. Cas. 143; Britton v. Com., 1 Cush. (Mass.) 302.

(721) See ante, 427, note 662.

[* 323] *3

*CHAPTER XV.

THE MEANS OF PREVENTING OFFENCES.

WE are now arrived at the fifth general branch, or head, under which I proposed to consider the subject of this Book of our Commentaries; viz. the means of preventing the commission of crimes and misdemeanors. And really it is an honour to our English laws, that they furnish a title of this sort; since preventive justice is, upon every principle of reason, of humanity, and of sound policy, preferable to punishing justice (a); the execution of which, though necessary, and in its consequences a species of mercy to the commonwealth, is attended with many harsh and disagreeable circumstances.

Preventive justice may consist-I. in the apprehending of persons at whom suspicious circumstances point as likely to commit crime; or, II. in requiring persons to find sureties for keeping the peace, or for their good behaviour; or, III. in making criminal the having in possession certain things presumably for the commisson of crime; or, IV. in searching for the evidences of guilt, and seizing weapons or instruments the use or possession of which may scarcely be deemed compatible with innocence.

I. If a constable, or even a private person, see another on the point of committing treason or felony, or doing an act which would manifestly endanger the life of another, such constable or private person may lawfully lay hold on the individual thus acting, and detain him until it can be *presumed that he has changed his purpose (b). When [* 324] a felony is committed, or a dangerous wound is given, it is the duty of a bystander to arrest the offender (c), and a private person present at an affray may stay the affrayers until their heat is over, and then deliver them to a constable (d).

I. Apprehension of suspected persons.

A constable or peace officer may take into custody, without a warrant, any person whom he shall find loitering in any highway, yard, or other place during the night, and whom he shall have good cause to suspect of having committed, or being about to commit, any felony mentioned in the act which concerns offences against the person, and shall take such suspected person as soon as reasonably may be, before a justice of the peace, to be dealt with. according to law (e).

By s. 103 of the Larceny Act (24 & 25 Vict. c. 96), any person found committing an offence (f), punishable either upon indictment, or upon summary conviction, by virtue of the act, may be immediately apprehended without a warrant by any person, and any person to whom property suspected to have been stolen is offered, may apprehend the party offering it.

By s. 61 of the act concerning malicious injuries to property (24 & 25 Vict. c. 97), any person found committing an offence against that act may be appre

(a) Beccar. ch. 41.

(b) 2 Hawk. P. C. c. 12, s. 19.

2 Hawk. P. C. c. 12, s. 1.

(d) Id. c. 13, s. 8. Price v. Seeley, 10 Cl. &

(e) 24 & 25 Vict. c. 100, s. 66; see also 24 & 25 Vict. c. 96 (s. 104), c. 97 (s. 57). (f) Except that of angling in the daytime.

hended without a warrant by a peace officer, or by the owner of the property injured, or his servant, and taken before a justice of the peace.

Also under s. 31 of the act which concerns offences against the coinage, it is lawful for any person whatsoever to apprehend one found committing an indictable offence *against the act, and to deliver him into the cus

tody of a constable.

[*325] Such are instances exemplifying the anxiety of our law to prevent the commission of crime at the risk even of needlessly interfering with the liberty of the person which it so highly prizes. To this part of our subject we shall revert when considering the mode in which a criminal proceeding is initiated (g).

II. The second kind of preventive justice above specified consists in obliging those persons, whom there is probable ground to suspect of future misbehaviour, to stipulate and to give assurance to the public, that such II. Sureties for the peace or offence as is apprehended shall not happen: by finding pledges good behaviour. or securities for keeping the peace, or for their good behaviour. This requisition of sureties has been several times before mentioned as part of the penalty inflicted upon such as have been guilty of certain felonies and misdemeanors (h): but there also it must be understood rather as a caution against the repetition of the offence, than any immediate pain or punishment. And indeed, if we consider human punishments in a large and extended view, we shall find them all rather calculated to prevent future crimes, than to expiate the past: since, as was observed in a former chapter (i), punishments inflicted by temporal laws may be classed under three heads; such as tend to the amendment of the offender himself, or to deprive him of power to do future mischief, or to deter others by his example; all of which conduce to one and the same end, of preventing future crimes, whether that be effected by amendment, disability, or example. The caution, however, which we speak of at present, is such as is intended merely for prevention, without any crime actually committed by the party on whose behalf sureties are required, but arising only from a probable suspicion, that some crime is intended

or is likely to happen; and consequently it is not meant in any degree [*326] as punishment, unless perhaps for a man's imprudence in giving just ground of apprehension.

Under the Saxon constitution sureties were always at hand, by means of the ancient institution of decennaries or frank pledges; whereby, as formerly observed (k), the whole neighbourhood or tithing of freemen became mutually pledges for each other's good behaviour. But this great and general security being now fallen into disuse, there has succeeded to it the method of making suspected persons find particular and special securities for their future conduct: of which we find mention in the laws of king Edward the Confessor (7); "inveniat fidejussores de pace et legalitate tenenda" Let us therefore consider, first, what this security is; next, who may take or demand it; and lastly, how it may be discharged.

1. This security consists in being bound, with one or more sureties, in a

(g) Post, chap. 18; ante, pp. 206, 207.

(h) Ante, p. 263.

(i) Ante, chap. 1, p. 7.

(k) Ante, vol. i. p. 135.
(2) Cap. 18.

VOL. II-69

recognizance or obligation to the crown, entered on record, and taken in some court by some judicial officer; whereby the parties acknowledge themselves to be indebted to the crown in the sum required (for instance 1007.), with condition to be void and of none effect, if the party shall appear in court on such a day, and in the mean time shall keep the peace, or conditioned to keep the peace for a certain period (m), either generally, towards the queen and all her liege people; or particularly, also, with regard to the person who craves the security. Or, if it be for the good behaviour, then on condition that he shall demean and behave himself well (or be of good behaviour), either generally or specially, for the time therein limited, as for one or more years, or for life. This recognizance, if taken by a justice of the peace, must be certified to the [* 327] next sessions in pursuance of the statute 3 Hen. 7, c. 1, or, in a case of felony, to the assizes, pursuant to the statute 1 & 2 Ph. & M. c. 13; and if the condition of such recognizance be broken, by any breach of the peace in the one case, or any misbehaviour in the other, the recognizance becomes forfeited or absolute; and being estreated or extracted (taken out from among the other records) and sent up to the Exchequer (n), the party and his sureties, having now become the queen's absolute debtors, are sued for the several sums in which they are respectively bound. And it is now provided by the statute 16 & 17 Vict. c. 30, s. 2 (0), that where any recognizance to keep the peace, or to be of good behaviour, has been entered into by any person as principal or surety at quarter sessions, or before any justice or jus tices of the peace, the quarter sessions, upon application made to it, may declare such recognizance to be forfeited upon proof of a conviction of the party bound thereby, of any offence which is in law a breach of the condition. of the same, and upon further proof that a notice in writing, signed by the person seeking to put the recognizance in force, has, seven clear days before the commencement of the sessions, been personally served upon, or left at the usual place of abode of the party, or each of the parties if more than one, who entered into such recognizance.

2. Justices of the peace, by virtue of their commission, or those who are ex officio conservators of the peace, as mentioned in a former volume (p), may demand such security according to their own discretion; or it may be granted at the request of any subject, upon due cause shown, provided such demandant be under the protection of the crown; for which reason it was formerly doubted, whether Jews, pagans, or persons convicted of præmunire, were entitled thereto (q). Or, if the justice is averse to act, it may be granted by [*328] mandatory writ, called a*supplicavit, issuing out of the court of queen's bench or chancery; which will compel the justice to act, as a ministerial and not as a judicial officer: and he must make a return to such writ, specifying his compliance, under his hand and seal (r). But this writ is seldom or never used: for when application is made to the superior courts, they usually take the recognizances there, under the directions of the statute 21 Jac. 1, c. 8. And indeed a peer or peeress cannot be bound over in any other place than the courts of queen's bench or chancery: though a justice of the

(m) Prickett v. Gratrex, 8 Q. B. 1020; Willes

v. Bridger, 2 B. & Ald. 278.

(n) See 22 & 23 Vict. c. 21, ss. 38-40. (0) See also the stats. 3 Geo. 4, c. 46, s. 4; 7 Geo. 4, c. 64, s. 31.

(p) Ante, vol. i.

(g) 1 Hawk. P. C. 126.

(r) F. N. B. 80; 2 P. Wms. 202.